NYSE American Company Guide,Sec. 110.SECURITIES OF FOREIGN COMPANIES
The Exchange recognizes that every corporate entity must operate in accordance with the laws and customary practices of its country of origin or incorporation. Therefore, in evaluating the eligibility for listing of a foreign based entity, the Exchange will consider the laws, customs and practices of the applicant's country of domicile, to the extent not contrary to the federal securities laws (including but no limited to Rule 10A-3 under the Securities Exchange Act of 1934), regarding such matters as: (i) the election and composition of the Board of Directors; (ii) the issuance of quarterly earnings statements; (iii) shareholder approval requirements; and (iv) quorum requirements for shareholder meetings. A company seeking relief under these provisions should provide written certification from independent local counsel that the non-complying practice is not prohibited by home country law. Any foreign based entity that is a foreign private issuer (as defined in Exchange Act Rule 3b-4(c)) can avail itself of an exemption from the requirements of Section 805(c) hereof, but exemptive relief under Section 805(c) is not available to a foreign based issuer that is not a foreign private issuer. In addition, the company must provide English language disclosure of any significant ways in which its corporate governance practices differ from those followed by domestic companies pursuant to the Exchange's standards. This disclosure may be provided either on the company's web site and/or in its annual report it is required to file with the SEC that includes audited financial statements (including on Forms 10-K, 20-F, or 40-F). If the disclosure is only available on the web site, the annual report must so state and provide the web address at which the information may be obtained.
Since business practices may vary among foreign companies, the following information is presented solely as a guide rather than as a set of inflexible rules:
(a) Listing Requirements—The shares of foreign companies may be considered for listing under
Companies which do not meet the share distribution requirements for domestic companies (
Round-Lot Public Shareholders
Publicly Held Shares
Aggregate Market Value of Publicly Held Shares
(b) Form of Security—
(i) ADRs—Normally, shares of foreign companies are listed as "American Depository Receipts" (sometimes designated as "ADRs" or "American Shares") of an acceptable American bank or trust company, representing the deposit of an equivalent amount of underlying foreign shares.
Generally, the deposit agreement, under which ADRs are issued, should provide for the following:
Release of Shares—The deposit agreement must permit the prompt release of shares deposited abroad on either mail or cable advice by the depositary of the cancellation of equivalent American Depositary Receipts, and the issuance of additional Receipts in New York upon either mail or cable advice from the sub-depositary abroad of the deposit of additional shares.
Interchangeability—Underlying shares will not be accepted for deposit or transfer if they are subject to any restrictions on sale or transfer and unless they are accompanied by all certifications required by the U.S. or the country of origin. The Exchange may, however, accept restrictions in the deposit agreement on interchangeability of certificates for a short period after the date of listing.
Dividends, Distributions and Reports—Dividends on deposited foreign shares underlying ADRs are collected by the U.S. depositary (or its foreign correspondent or agent) and, in turn, paid in U.S. dollars by the depositary to registered ADR owners. The depositary is also usually contractually obligated to distribute financial statements and other reports issued by the company whose shares are represented by such ADRs.
Certificates—The American Depositary Receipts dealt in on the Exchange must conform to the customary standards as to form and printing, and must include a statement on the face of the certificate that title thereto is transferable with the same effect as in the case of an investment security under Article 8 of the Uniform Commercial Code.
(ii) Actual Foreign Shares—The use of foreign share certificates will be considered when: (a) the certificate is printed in English and is in registered form; (b) the certificates are interchangeable and can be delivered and transferred in New York City as well as the country of origin; and (c) arrangements for distributing dividends and other rights and benefits to American holders are equivalent to those provided by the use of American Depositary Receipts.
(c) Citizenship Restrictions—The Exchange reserves the right not to approve the listing of shares which are subject to governmental or charter restrictions or limitations on interchangeability, or with respect to the total amount of the issue that may be owned or voted by residents outside the country of origin, or by the holders of American Depositary Receipts.
(d) Disclosure—The Exchange will require the company to: comply with the annual report publication requirements set forth in Section 610(a) below.
(e) Each listed foreign private issuer must, at a minimum, submit to the SEC a Form 6-K that includes (i) an interim balance sheet as of the end of its second fiscal quarter and (ii) a semi-annual income statement that covers its first two fiscal quarters. This Form 6-K must be submitted no later than six months following the end of the company's second fiscal quarter. The financial information included in the Form 6-K must be presented in English, but does not have to be reconciled to U.S. GAAP.
December 1, 2003 (Amex-2003-065).
April 1, 2009 (NYSEAmex-2009-04).
January 11, 2013 (NYSEMKT-2012-48).
June 23, 2017 (NYSEMKT-2017-23).
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